Foreign Tax Credit under Employee Stock Option Scheme (ESOS)

ITR filing due date are coming closer and we all must have now initiated our tax filings as well. But here we must need not forget one important aspect, applicable if you are getting benefit of stock options as a part of your CTC in your annually generated Form 16.

Many of us are in an employment with the foreign listed companies and also receiving benefit of holding of stock options which are generally listed in foreign stock exchanges. We generally overlooked the taxability aspects of stock options in our tax filings for which we might get the benefit under double taxation in our returns with an introduction of the new Rule 128 of the Income Tax Rules applicable w.e.f 01st April, 2017 so as to allow the credit of any tax paid by an Indian resident in the foreign country on an income which is also getting taxed in India in his applicable tax return.

Therefore, here we will discuss the requirement of Rule 128 along with an understanding of an impact of the taxability of ESOS in our Income tax returns.

Let us first understand a bit about taxability of ESOS for an Indian resident-

ESOS is an option which is given to the employees to purchase company’s shares at pre-determined price at a future date. Its taxability is calculated at two stages-

  1. First it occurs when shares are allotted to the employee after he has exercised his option on completion of the vesting period.
  2. Secondly when the employee opts to sell the allotted shares.

Taxability under option (a)- It will be taxed as a perquisite and the difference of FMV (Fair market value) on the date of exercise of an option and the Exercise price will be counted as a perquisite u/s 17(2)(vi) of an Income Tax Act, 1961 and will reflect in your Form 16 under an annexure Form 12BA.

Taxability under option (b)– When an employee decides to sell the shares, its taxability will fall under capital gains which is the difference of sale proceeds and FMV of shares at the time of exercise of an option.

Now let us understand the documentation criteria specified under Rule 128 for claiming the tax credit on the tax which we had paid in the foreign country and also paying in India through holding of foreign company stocks and generating income therefrom either in the form of a perquisite or capital gains.

Following documents we must retain with ourselves for claiming the benefit of FTC(Foreign tax credit) specified under Rule 128-

  1. A statement of foreign income offered to tax and the foreign tax deducted or paid on such income in Form no. 67 and
  2. Certificate of statement specifying the nature of income and foreign tax deducted or paid-
    • From the tax authority of the foreign country; or
    • From the person responsible for deduction of such tax; or
    • Signed by the taxpayer accompanied by proof of tax payment and / or proof of deduction.

Important Notes-

  1. For claiming the benefit of FTC in your Income tax returns, we must need to file the above mentioned documents on or before the due date of filing of tax return specified under section 139(1) of the Income Tax Act, 1961.
  2. FTC shall not be available against payment of any interest, fee or penalty levied under the Income Tax Act, 191.

Hence, if anyone of us has paid the tax in foreign country and simultaneously also paying the same in India as well, its better we should immediately file our Form 67 online on Income tax e filing portal and claim the credit of the same in our tax returns.


Author Bio

Qualification: CA in Practice
Company: Jindal Ila & Co | Chartered Accountants
Location: Gurgaon, Haryana, IN
Member Since: 09 Sep 2020 | Total Posts: 6
Jindal Ila & Co. is a chartered accountancy firm rendering comprehensive professional services which include audit, management consultancy, tax consultancy, accounting services, manpower management, secretarial services etc. Our industry exposure includes the logistics sector with transportation View Full Profile

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May 2021